Matter of M- and G-

Cite as 5 I&N Dec. 206

IN THE MATTER OF MAND G

In ADVANCE SECTION 212 (c) Proceedings A-2202545

A-2202546

Decided by the Board April 22, 1953

Ineligible to citizenship-Section 101 (a) (19) Immigration and Nationality Act of 1952-Neutral alien granted exemption from United States military service-Section 3 (a) Selective Training and Service Act of 1940. A native of Switzerland who obtained exemption from military service based solely upon misapprehension predicated upon justifiable reliance upon advice given him by the Swiss Legation is not "ineligible to citizenship" as that term is defined in section 101 (a) ( 19 ) of the Immigration and Nationality Act of 1952, the facts in the case being identical with those present in the case of Moser v. United States, 341 U. S. 41 (1951) . INADMISSIBLE : Section 212 ( a) ( 22) -Ineligible to citizenship.

BEFORE THE BOARD

Discussion : The Assistant Commissioner by order dated April 7, 1953 has certified this case to the Board for final decision pursuant to the provisions of 8 C. F. R. 6.1 (c) . The primary question to be resolved is whether these applicants are to be regarded as persons ineligible to citizenship because of the fact that they appear to have been exempted from military service during the second World War as neutral aliens. The term "ineligible to citizenship " was defined in section 28 (c) of the Immigration Act of 1924 as including an individual debarred from becoming a citizen of the United States under section 3 (a) of the Selective Training and Service Act of 1940, as amended, or under any law amendatory of, supplementary to, or in substitution for such section. This provision was substantially reenacted in section 101 (a) (19) of the Immigration and Nationality Act of 1952 which defines the term "ineligible to citizenship" to mean, notwithstanding the provisions of any treaty relating to military service, an individual who is, or was at any time, permanently debarred from becoming a citizen of the United States under section 3 ( a) of the Selective Training and Service Act of 1940, as amended, or under section 4 (a) of the Selective Service Act of 1948, as amended, or under any section of law amendatory of, supplementary to, or in substitution for, any of such sections or acts.

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The record discloses that the applicants are natives and citizens of Switzerland, 37 and 33 years old, respectively, who were lawfully admitted to the United States for permanent residence at the port of Calexico, Calif., on October 18, 1939. They registered under the Selective Training and Service Act of 1940 on October 16, 1940, and subsequently submitted questionnaires listing themselves as citizens of Switzerland who had not declared their intention to become citizens of the United States. On the basis of the information furnished in this questionnaire, each was classified by his local draft board on October 28, 1941, and on January 28, 1941, respectively, in IV--C. They remained in this classification until the fall of 1945 when they were changed to IV-A and the younger applicant was reclassified IV-C on June 24, 1946. The reason for the classification of IV-C is not ex- plained by selective service records but such classification appears to have been based upon the provisions of section III-A of the Selective Training and Service Act of 1940 which then provided ; "Except as otherwise provided in this act, every male citizen of the United States, and every male alien residing in the United States who has declared his intention to become such a citizen, between the ages of 21 and 36 at the time fixed for his registration, shall be liable for training and service in the land or naval forces of the United States." These applicants, being non-declarant aliens, were by operation of law automatically classified IV-C because of their nonliability for military service. The applicants testified and submitted corroborative evidence to establish that they filed DSS Form 301, Revised, seeking exemption from military service as the result of instructions circularized to them by the Swiss Legation which informed them that exemption could be obtained without the necessity of forfeiting the right thereafter to become an American citizen if the request was based on article II of the Treaty of Friendship, Commerce, and Extradition between the United States and Switzerland of November 25, 1850. The applicants testified that as a result of the information from the Legation of Switzerland which was regarded by them in the nature of a directive, they claimed exemption from military service pursuant to the treaty of 1850 under the belief that it would not render them ineligible to citizenship. The form executed by them in this connection was selective service Form DSS 301, Revised. Both applicants testified that they had no personal objection to military service and acted solely upon the basis of the directive received from the representative of their Government, and alleged that had they known a claim of exemption from military service would have rendered them ineligible to citizenship, neither would have filed the claim for exemption. The facts of this case appears to be identical with the facts present

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in the case of Moser v. United States, 341 U. S. 41 (1951) . The court delivered itself of the following opinion : Petitioner did not knowingly and intentionally waive his rights to citizenship. In fact, because of the misleading circumstances of this case, he never had an opportunity to make an intelligent election between the diametrically opposed courses required as a matter of strict law. Considering all the circumstances of the case, we think that to bar petitioner nothing less than an intelligent waiver is required by elementary fairness * * * to hold otherwise would be to entrap petitioner.

Upon the authority of the Moser case, it follows that these applicants were not within the provisions of section 3 ( a) of the Selective Training and Service Act of 1940, as amended, and were therefore not ineligible to citizenship as that term is defined in section 28 (c) of the Immigration Act of 1924. We also find that they are not included within the term "ineligible to citizenship" as defined in section 101 ( a)

(19) of the Immigration and Nationality Act. This definition substantially reenacted the language of section 28 (c) of the Immigration Act of 1924, with the addition of the words "notwithstanding the provisions of any treaty relating to military service." As stated in the Moser case (supra) , the conclusion that the petitioner was not ineligible to citizenship was based upon the fact that he did not knowingly and intentionally waive his right to citizenship because under the misleading circumstances of the case, he never had an opportunity to make an intelligent election between the opposed courses required as a matter of strict law. It is readily apparent that the exemption from military service obtained by these applicants was not merely upon the basis of the provisions of any treaty relating to military service, but was based solely upon a misapprehension predicated upon justifiable reliance upon advice given them by the Swiss Legation. We therefore conclude that the petitioners are not ineligible to citizenship and they have no reason to require the exercise of the discretion contained in section 212 (c) of the Immigration and Nationality Act in connection with subsequent reentries into the United States. Accordingly, we shall deny the application for the exercise of this discretionary authority. Order : It is ordered that the applicants be found to be not inadmissible as persons ineligible to citizenship and that their applications for the exercise of the discretion contained in section 212 (c) of the Immigration and Nationality Act be denied.

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